Filed 10/8/15 P. v. McLucas CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). Th is opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE
STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. KEITH EUGENE M C LUCAS , De fendant and Appellant. D066548

(Super. Ct. No. SCD254227)

APPEAL from a judgment of the Superior Court of San Diego County, Timothy R. Walsh, Judge. Affirmed as modified

.

Denise M. Rudasill, under appointment by the Court of Appeal, for Defe ndant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.2

Kei th Eugene McLucas pled guilty to false imprisonment (Pen. Code, §§ 236, 237, subd. (a)), 1 and the trial court imposed a three

- year split sentence, with the first year to be served in jail, followed by two years of mandatory supervision pursuant to section 1170, subdivision (h)(5)(B). The sole issue on appeal is whether the trial court violated
McLucas ' s constitutional rights by requiring as a condition of mandatory supervision that McLucas obtain probation officer approval as to his residence.
As we will explain, we conclude that the condition requiring probation officer approval of McLucas ' s residence is unconstitutionally overbroad, and we accordingly strike that condition from the order granting mandatory supervision.
I.
FACTUAL AND PROCEDURAL BACKGROU ND According to the probation officer ' s report prepared in connection with sentencing in this case, McLucas ' s conviction arose out of an incident on February 22, 2014, during which he may have been suffering a psychotic episode possibly triggered by the u se of drugs . According to statements that McLucas ' s wife gave to police , McLucas was acting agitated and paranoid inside their home

. McLucas pushed the couch in front of the door and barricaded the windows, appearing to believe that there was someone out side who was going to kill him. McLucas did not allow his wife to exit the home and was swinging knives and a baseball bat around the room. After several hours, McLucas called paramedics to report his wife was having chest pains.

1 Unless otherwise noted, all further statutory references are to the Penal Code.3

McLucas was charged wi th (1) making a criminal threat, while personally using a deadly and dangerous weapon (§§ 422, 1192.7, subd. (c)(23)) (count 1) ; (2) false imprisonment by violence, menace, fraud or deceit (§§ 236, 237, subd. (a)) (count 2) ; and (3) exhibiting a deadly wea pon other than a firearm (§ 417, subd. (a)) (count 3)

. Counts 1 and 3 were dismissed by the court after a preliminary examination, and
McLucas later pled guilty to the remaining count of false imprisonment (§§ 236, 237, subd. (a)).
The trial court sen tenced McLucas to a three

- year sentence, with one year to be served in jail and two years to be served on mandatory supervision. (§ 1170, subd. (h)(5)(B).) As a condition of mandatory supervision, the trial court ordered, among other things, that McLuca s " [o]btain [pro bation officer] approval as to residence. " McLucas made no objection to that condition during sentencing. McLucas obtained a certificate of probable cause to appeal, and filed this appeal,
which challenge s t he constitutionality o f the co ndition that he obtain probation officer approval of his residence.4 II.
DISCUSSION McLucas contends that the condition of mandatory supervision requiring probation officer approval of his residence is unco n stitu t ional ly overbroad , violating his

constitut ional right to due process, right to travel and freedom of association. 2

As an initial matter , we note that a defendant generally forfeits an appellate challenge to the reasonableness of a probation condition by failing to object in the trial

court

. ( Peo

ple v. Welch (1993) 5 Cal.4th 228, 237 ( Welch ) .) 3 However, th is rule of forfeiture does not apply to a defendant ' s " ' facial challenge ' " to a probation condition a s unconstitutionally vague and overbroad

. ( In re Sheena K. (2007) 40 Cal.4th 875, 885

2 The propriety of a residence approval probation condition in a case involving possession of drugs and misdemeanor drug us e is currently before our Supreme Court. ( People v. Schaeffer , review granted Oct. 31, 2012, S205260.) We note also that although the precise issue presented here concerns conditions of mandatory supervision , rather than conditions of probation , there is no reason why the same legal principles should not apply, and we accordingly refer to case law concerning the constitutionality of probation conditions. Indeed the mandatory supervision program created by the Criminal Justice Re a lignment Act (Stats. 2011 , ch. 15, § 1) is expressly modeled on and incorporates the terms, conditions and procedures applicable to persons on probation. (See § 1170, subd. (h)(5)(B) [ " During the period of mandatory supervision, the defendant shall be supervised by the county pro bation officer in accordance with the terms, conditions, and procedures generally applicable to persons placed on probation, for the remaining unserved portion of the sentence imposed by the court. " ].)
3 Therefore, although " ' [a] condition of probation will not be held invalid unless it

" (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.

. . " ' " ( People v. Olguin (2008) 45 Cal.4th 375, 379 ), a challenge to the reasonab leness of a probation condition for failure to meet these requirements may not be raised on appeal if no objection was made in the trial court. ( Welch , supra , 5 Cal.4th at p. 237 .)5

( She ena K

. ) .) A defendant may assert a constitutional challenge to a probation condition
to the extent that it present s " a pure question of law, easily remediable on appeal by
modification of the condition , " and that " is capable of correction without referenc e to the particular sentencing record developed in the trial court

. " ( I d. at pp. 888, 887 .) Here, McLucas did not object to the imposition of the condition that he obtain probation officer approval of his residence. Therefore, McLucas may challenge that
condition on appeal only to the extent he raises a facial challenge to its constitutionality , and only to the extent that his challenge presents a pure question of law that does not requir e us to refer the particular sentencing record developed in the tri al court. ( Sheena K. , supra , 40 Cal.4th at pp. 88 7

- 889 .) We review constitutional challenges to probation conditions de novo. ( In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
C ase law holds that a condition requiring a defendant to obtain probation officer approval of a residence " impinges on constitutional entitlements

— the right to travel and
freedom of association. " ( People v. Bauer (1989) 211 Cal.App.3d 937, 944 ( Bauer ) ; see also Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1100 [ generally di scussing the state
and federal constitutional right to travel; Roberts v. U.S. Jaycees (1984) 468 U.S. 609,
617 [discussing the federal constitutional righ t to freedom of association].) Based on this authority, we conclude that McLucas ' s constitutional ri ghts are impacted by the condition requiring probation officer approval of his residence.
As a restriction on McLucas ' s exercise of his constitutional rights is at issue, we apply the principle that " [a] probation condition that imposes limitations on a p erson ' s constitutional rights must closely tailor those limitations to the purpose of the condition6

to avoid being invalidated as unconstitutionally overbroad. " ( Sheena K. , supra , 40
Cal.4th at p. 890 .) " ' [T]he overbreadth doctrine requires that conditi ons of probation that impinge on constitutional rights must be tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation. ' " ( People v. Quiroz (2011) 199 Cal.App.4th 1123, 1128 .) " ' If available alternat ive means exist which are less violative of a constitutional right and are narrowly drawn so as to correlate more closely with the purpose contemplated, those alternatives should be used [citations]

. ' " ( People v.

Pointer (1984) 151 Cal.App.3d 1128, 1139 ( Pointer ) .)
Based on the se legal principles, the issue presented for our de novo review is whether the requirement that McLucas ' s probation officer approve his residence is carefully tailored and reasonably related to achiev ing the goal of reformation a nd
rehabilitation. The Attorney General contends that probation officer approval of
McLucas ' s residence is reasonably related to the goal of reformation and rehabilitation because (1) it will help e nsure that McLucas is not living in an environment conduc ive to
th e use of illegal drugs; and (2) it will help to limit McLucas ' s harmful contact with the victim, his wife. Although probation officer approval of McLucas ' s residence may , as identified by the Attorney General, have some reasonable relation to t he goals of preventing
McLucas ' s drug use and avoiding harmful contact between McLucas and the victim, the condition is unconstitutionally overbroad because it is not carefully tailored t o meet either of those goals. T he goal s of preventing McLucas ' s drug use and detrimental contact with
the victim are more directly and effectively addressed by other conditions of McLucas ' s7

mandatory supervision. Specifically, the prevention of McLucas ' s future drug use is directly addressed by (1) the prohibiti on of McLu cas ' s possessi on and us e of controlled substances; (2) the requir ement that McLucas submit to drug testing ; and (3) the ability of
the probation officer to require McLucas to complete a residential drug treatment program. The prevention of any detrimental contact between McLucas and the victim is directly addressed by requirements that McLucas (1) not contact or attempt to contact the
victim , (2) inform his probation officer of any change of res idence within 72 hours and (3) attend a program for batterers

. Here, because there are alternative provisions specified in the conditions of mandatory supervision to prevent McLucas ' s drug use and harmful contact with the
victim that are " less violative of a constitutional right and are narrowly drawn " ( Pointer ,

s upra , 151 Cal.App.3d at p. 1139 ), we conclude that the requirement of probation officer approval of McLucas ' s residence is unconstitutionally overbroad and not narrowly tailored to the goals of re formation and rehabilitation. Accordingly, we order that th e unconstitutional condi tion be stricken from the conditions of McLucas ' s mandatory supervision. ( Bauer , supra , 211 Cal.App.3d at p. 944 [striking unconstitutionally overbroad condition requiring probation officer of approval of a probationer ' s residence] .)8 DISPOSITION Condition 7g in the order granting mandatory supervision, which requires that
McLuc a s " [o]btain [pro bation officer] approval as to residence [,] " is hereby ordered
stricken. In all other respects, the judgment is affirmed.

IRION, J.
WE CONCUR:

HALLER, Acting P. J.

M C INTYRE, J.